9911796707
TMI Blog2003 (8) TMI 341X X X X Extracts X X X X X X X X Extracts X X X X ..... xemption under Notification No. 8/96, dated 27-3-1996 and other subsequent notifications. The claim of the appellant was that the boxes in question were exempted under the following heading of the notification :- Reference No. Chapter or heading No. or sub-heading No. Description of goods Rate Conditions (1) (2) (3) (4) (5) 73.6 73.10 and 73.26 Mathematical boxes, geometry boxes and colour boxes Nil - Subsequently show cause notice, dated 22-2-2001 was issued alleging that there was evasion of central excise duty of about Rs. 67 lakhs in respect of boxes cleared as geometry boxes during the period April, 1996 to December, 2000. Under Order-in-Original No. 2/2003, dated 31-1-2003, Commissioner of Central Excise, Delhi-I confi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sold along with the instruments also. The learned Counsel for the appellants points out that the Central Excise Tariff classifications specifically recognizes this inasmuch as HSN Notes under Chapter Heading 90.17 for drawing instruments specifically states that "Drawing compasses, dividers, reduction compasses, spring bows, mathematical drawing pens, dotting wheels, etc., whether in a case (e.g. drawing sets) or separately. It is also the contention of the appellant that geometry/mathematical box makers and geometry/mathematical instrument makers are different industries and both the products are traded separate. It is also submitted that these boxes are clearly known in commerce and industry as geometry/mathematical boxes. The appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ents purchase the instruments which were put into these boxes". Shri Chavan has also stated that the boxes of dimensions 3.75" x 7.25" x 1" are suitable for filling the instruments. With regard to boxes with the dimensions 2.25" x, 7.5" x 1" he has stated that these are also used as geometry boxes and that M/s. Ashoka Trading Corporation, Delhi manufactures mathematical instruments of such small size. 4. During the hearing of the case, the learned Counsel for the appellant has also pointed out that the interpretation placed in the impugned order could also lead to a situation where the exemption would be totally inapplicable to any goods inasmuch as mathematical instruments (whether in a case or not) were all through exempted under Ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e learned SDR has contended that since the exemption is specific to "mathematical/geometrical boxes", granting exemption to empty boxes would not be correct inasmuch as these boxes become geometrical/mathematical boxes only upon the filling of geometrical/mathematical instruments inside them and not in their empty condition. He also submitted that the granting of exemption to general category of metal boxes would lead to abuse of the exemption. 7. The issue arising for consideration is whether the metal boxes in question are geometry boxes/mathematical boxes. It is clear from the evidence on record that these boxes were being sold by the appellant's buyers, namely, Archis and Camlin as geometry/mathematical boxes. Their price-list des ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd in the present case is in respect of only boxes, which were cleared empty. The same boxes when they were cleared with instruments, were accepted as geometry/mathematical boxes by Revenue Authorities. From this itself, it is clear that the boxes are manufactured for, intended and are used as mathematical/geometry boxes. The only difference being that some boxes are cleared after filling with instruments as geometrical sets and some others are cleared empty for further sale and use as such boxes. The impugned order proceeds to determine the classification depending upon the actual use, which as already stated, is not the correct test. 8. There is also merit in the appellant's contention that they had declared the goods as geometrical ..... X X X X Extracts X X X X X X X X Extracts X X X X
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